Documented Workers and Undocumented Workers Alike are Protected by California Wage And Labor Laws

The term “undocumented immigrant” generally includes anyone residing in the United States of America without legal documentation. The term includes both individuals who entered the United States without proper permission from the government and individuals who entered the country with a legal visa, but the visa is no longer valid. An “undocumented immigrant worker” or “undocumented worker” is any foreign-born person who is not a permanent resident and is not a U.S. citizen and does not have permission to work in the U.S. According to the Public Policy Institute of California, in 2014, the year of the most recent data available, nearly ten percent of California workers were undocumented. Only the State of Nevada is estimated to have a higher percentage of undocumented workers than California. Undocumented workers play a large role in industries such as construction, agriculture, food service, and manufacturing. Given that undocumented workers comprise a substantial portion of the workforce, how they are treated in the workplace is a major societal concern.

Historically, the exploitation of undocumented workers, who often showed a willingness to toil for longer hours and for lower pay than other workers, was an all too frequent occurrence. Many employers were eager to take on such workers as a cost-saving measure. So long as the undocumented worker did not complain, the employer rarely asked for immigrations papers. However, when undocumented workers complained about unpaid wages or other wage and hour or working condition concerns—or were injured on the job—many employers would promptly use the threat of deportation as a club. This exploitation continues, along with threats to have the worker deported. This is known as immigration retaliation. For example, an undocumented worker informs his employer that his paycheck has bounced, or he was underpaid. The employer reacts by telling the worker that he is going to report the worker to immigration unless he drops his complaint. This is wage theft. Wage theft is a crime that disproportionately affects undocumented workers.

• Not being paid at least minimum wage
• Bounced paychecks
• Owners or managers taking the employee’s tips
• Not paying the agreed upon wage rate, including shift premiums, and reporting time pay
• Denial of paid sick leave, vacations, or bonuses
• Not receiving meal breaks and paid rest breaks
• Not timely receiving all wages due upon the end of employment
• Unauthorized deductions from pay
• Not being reimbursed for work expenses

California labor laws protect all workers, regardless of immigration or citizenship status. With very few exceptions, all workers, regardless of immigration status, are entitled to all the rights and protections offered under California wage and hour laws. Under California law, an employer cannot refuse to pay a worker all wages due, or pay a worker less than what is required under California minimum wage and overtime laws due to immigration status. Nor can an employer deny a worker the rest breaks, and meal breaks to which he or she is entitled under California law because of immigration status or refuse to pay all tips or commissions or other forms of wages due. In fact, it is the public policy of California to ensure that no employer takes advantage of a worker because of immigration status: “All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state” California Civil Code section 3339; California Government Code section 7285. (Note: Since employers are prohibited by federal law from hiring undocumented workers, state law cannot require an employer to rehire an undocumented worker who has been wrongfully terminated.)

For purposes of enforcing California wage and hour laws, a person’s immigration status is irrelevant to the issue of liability. In a proceeding to enforce California wage and hour laws, no inquiry shall be permitted into a person’s immigration status unless the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary to comply with federal immigration law. California Labor Code section 1171.5(b). In fact, in the absence of a judicial warrant, or except as otherwise required by federal law, an employer shall not voluntarily consent to an immigration enforcement agent entering any nonpublic area of a workplace or obtaining employee records. California Government Code sections 7285.1, 7285.2. “California ‘statutes leave no room for doubt about this state's public policy with regard to the irrelevance of immigration status in enforcement of state labor... laws.’” Santillan v. USA Waste of Cal., Inc. (9th Cir. 2003) 853 F.3d 1035, 1046.

The California Labor Commissioner, which is also known as the Division of Labor Standards Enforcement (DLSE), enforces California wage and hour laws and laws concerning working conditions. A worker who believes his or her rights under these laws have been violated may file a complaint with the DLSE. This right applies equally to documented and undocumented workers. In fact, the policy of the DLSE is that it will not question a complainant’s immigration status.

“’Earned but unpaid salary or wages are vested property rights.’... Noncitizens are guaranteed the same property rights as citizens” Reyes v. Van Elk, Ltd. (2007) 148 Cal.App.4th 604, 612. It is illegal to report or threaten to report the suspected or actual immigration status of an employee who has complained of not being paid properly under California labor laws. California Labor Code sections 244, 1019.

Thus, a worker, regardless of immigration status, can:

• File a complaint that the employer violated California Labor Code laws, so long as it is brought in good faith.
• Seek information about whether the employer is paying the worker in compliance with the California Labor Code.

Moreover, the business license of an employer may be suspended or revoked if the employer has been determined to have violated California Labor Code section 244 by reporting or threatening to report the suspected or actual immigration status of a worker who has complained of not being paid properly under California labor laws. California Business & Professions Code section 494.6.

A study by the National Employment Law Project found that between 2008 and 2011, only 17 percent of California workers who prevailed in wage claims before the DLSE and received a judgment were able to recover any payment from the employer. Therefore, if you are a victim of wage theft, your best option may be to find an experienced employment law attorney.

Regardless of your immigration or citizenship status, if you believe you are not receiving all wages you are owed or if you believe you are not receiving all rest breaks or lunch breaks to which you are entitled under California Law, or if you believe your employer or former employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact Us via our online form.